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Desir v. Ilchert

Published online by Cambridge University Press:  27 February 2017

Susan Burke
Susan Burke*
Affiliation:
Of the Virginia Bar
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Extract

Plaintiff, a Haitian seeking asylum in the United States, filed a petition for habeas corpus in the United States District Court for the Northern District of California, to overturn a denial of asylum by both an immigration judge and the Board of Immigration Appeals (BIA). The plaintiff sought asylum under section 101(a)(42)(A) of the Immigration and Nationality Act (8 U.S.C. §1101(a)(42)(A) (1982)) (INA) on the basis of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The district court upheld the BIA decision, which allowed deportation of the plaintiff because the incidents of persecution in Haiti were economically rather than politically motivated. The Court of Appeals for the Ninth Circuit (per Tang, J.) reversed, holding that the plaintiff had demonstrated persecution based on political opinion by showing a pattern of extortion by government officials, and remanded for a determination of whether the plaintiff would be persecuted upon his return to Haiti.

Keywords

Aliensrequest for asylum on account of persecutionattribution of political opinion to refugee by persecuting government
Type
International Decisions
Information
American Journal of International Law , Volume 82 , Issue 4 , October 1988 , pp. 830 - 832
Copyright
Copyright © American Society of International Law 1988

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References

1 The court took judicial notice of President Duvalier’s flight from Haiti on February 6, 1986, and the disbanding by the successor Government of the security forces, the Ton Ton Macoutes, that had persecuted the plaintiff.

2 840 F.2d 723, 726.

3 Id. at 727 (quoting Haitian Refugees Center v. Civiletti, 503 F.Supp. 442, 498–500 (S.D. Fla. 1980), aff’d as modified sub nom. Haitian Refugees Center v. Smith, 676 F.2d 1023 (5th Cir. 1982)).

4 Id. at 727–28.

6 The court discussed a number of relevant precedents, e.g., Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1985) (refusal of former member of right-wing party and military groups to join guerrillas in El Salvador was conscious choice to remain politically neutral and constituted political opinion); Argueta v. INS, 759 F.2d 1395 (9th Cir. 1985) (death threat based on persecutors’ erroneous belief that alien was member of guerrilla organization, coupled with affirmative choice to remain politically neutral, sufficient to establish clear probability of persecution based on political opinion); Del Valle v. INS, 776 F.2d 1407 (9th Cir. 1985) (refusal to join “death squad” and pursuit of studies and other community activities constituted choice to remain neutral and expression of political opinion under the Immigration and Nationality Act); Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985) (alien’s actual political view, whether neutral or partisan, irrelevant; where government attributed certain political opinions to him, this constituted persecution on account of political opinion); Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (alien persecuted because of political opinion imputed by persecutor).